It’s a plurality opinion, meaning that there was no majority for any particular rationale, only for the result. But what does that even mean?

It means Albright gets screwed, because he’s not the government or a bank or an insurance company. Of course it means that – this is the SCOTUS after all!

But let’s pretend, just for fun, that there’s something more to “the law” than: the government wins; the bank wins; the insurance company wins. Just for fun.

Well, go ahead and read the whole thing if you like. There’s an opinion by Rehnquist. There’s a concurring opinion by Scalia. There’s a concurring opinion by Ginsburg. There’s a concurring opinion by Kennedy. There’s a concurring opinion by Souter.

In any event, Albright does not say that it’s OK to obtain a conviction (or even to prosecute) based on false evidence. Just that if it’s a problem, it’s a 4th Amendment one subject to the protections of procedural due process.

Well, that’s more or less what Ginsburg’s concurring opinion says. But that’s not the holding of the case, is it?

Justice Stevens, in dissent, maintained that despite Albright and its parade of judicial opinions, the question of whether due process is violated when someone is deliberately prosecuted by the government without probable cause remained open. That’s the last thing he said:

The Court’s judgment of affirmance is supported by five different opinions. Significantly, none of them endorses the reasoning of the Court of Appeals, and none of them commands a majority. Of greatest importance, in the aggregate those opinions do not reject my principal submission: the Due Process Clause of the Fourteenth Amendment constrains the power of state governments to accuse a citizen of an infamous crime.

I respectfully dissent.

Just in case you were wondering, knowingly prosecuting someone based on perjury and fabricated evidence would be – to say the least – prosecuting them without probable cause. It would also be a federal crime. See 18 U.S.C. 241 and 242. If you throw in a sexual assault or an attempt to commit a sexual assault, it is a potentially capital federal crime.

But I digress.

Who do you go with, Gamso or Stevens? We know who Mark Bennett would go with, because he thinks ethos is critically important. He would go with Justice Stevens, because of the credentials and qualities of the writer. And since I respect Bennett’s opinion so much I’ll just go ahead and agree with Stevens, too.

But there are others, nowhere near as insightful and intelligent as Bennett and Stevens, or even Gamso – or even me – who also think they know what Albright means, and they think it means a very, very different thing indeed.

Who are these others, these pedestrian thinkers with the temerity to match wits with Bennett and Stevens? Why, none other than the nation’s prosecutors.

Not to mention the United States government, speaking through its Solicitor General.

Well, what do these morons think Albright means, then?

I kid you not, for these simpletons Albright boils down to a footnote in the plurality opinion of Justice Rehnquist, which says in pertinent part:

Similarly, other cases relied on by the dissent, including Mooney v. Holohan, 294 U.S. 103 (1935), Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Agurs, 427 U.S. 97 (1976), were accurately described in the latter opinion as “dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.” Id., at 107.

Put another way, the government can prosecute someone with entirely made up evidence and perjury without violating their right to due process, so long as they don’t use the perjury and fabrication at a trial. If you don’t think this is a problem, you haven’t been paying attention.

How do I know that this is what the nation’s prosecutors, both state and federal, and the United States government itself, think Albright means?

Why of course, they have said so themselves. You can read for yourselves the Petitioner’s brief and reply brief, and the amicus briefs of the United States of America and the National Association of Assistant United States Attorneys and the National District Attorneys Association in the case of Pottawattamie County v. McGhee here.

There is actually no authority anywhere for the decidedly counter-intuitive, indeed shocking position taken by the prosecutors and the US government in those briefs other than that footnote in the plurality opinion in Albright v. Oliver.

And it is also probably worth noting that what is said in that footnote is plainly and demonstrably wrong. Mooney and Napue do not say what the footnote says they say – and Agurs does not say that they do, either.

So the basis for this frankly execrable opinion held by the nation’s prosecutors as a group and the United States government itself is a footnote in a plurality opinion in the SCOTUS. The plurality opinion has no precedential value in and of itself and in any case the relevant portion of the opinion’s footnote is an obvious and demonstrable error. Yet the government has been using this rationale to convict many, many people of crimes and lock them up. No harm no foul, as long as they don’t use perjury and fabricated evidence at a trial.

In other words, if they use perjury and fabricated evidence to bring serious charges and extort a guilty plea with a plea bargain, no violation of due process has occurred. It’s the equivalent of bringing a personal injury case when you know your client is faking, and extorting a settlement from an insurance company. This is one of the ever-lengthening list of things people are jailed for doing but government officials claim a right to do.

The SCOTUS has not offered their opinion on this issue, one way or the other, although the transcript of the oral argument of the Pottawattamie case indicates significant support for the government’s position, and little beyond Justice Sotomayor’s puzzlement in response.

If a lawyer has a case in a position to present this issue to the SCOTUS, fix this rather startlingly depraved thinking by the nation’s prosecutors and the Justices on the SCOTUS themselves – and yet does not do so – is the resulting parlous condition of the law the SCOTUS’s responsibility?